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HAWAIʻI ISLAND - Life of the Land argues that the Public Utilities Commission did not properly consider greenhouse gas emissions and climate change in their approval of the project.

(BIVN) – VIDEO TRANSCRIPT

The global debate on climate change looms over the Hū Honua Bioenergy project planned for the Hāmākua Coast.

WARREN LEE: “The project is currently undergoing construction, with efforts to become operational by the end of this year.”

The decades-long effort to transform the old Pepeʻekeo power plant into a biomass facility is nearly complete.

LEE: “… already spent $120 million dollars to date, following the Windward Planning Commission’s approval of SMA permit 221 back in 2011.”

But there are still a couple of legal hurdles in its way. One of those hurdles went before the Hawaiʻi Supreme Court on October 25th.

LANCE COLLINS: “So, the Life of the Land was granted participant status, based on its specific aspects of its expertise.”

The state judiciary provided an audio recording of the proceedings. The Life of the Land nonprofit is appealing the Public Utilities Commission decision to approve a new power purchase agreement between Hū Honua and the Hawaiʻi Electric Light Company.

COLLINS: “… and it sought to intervene, sought to upgrade its status for intervention to explicitly allow it to address specific environmental issues related to climate change, greenhouse gas emissions, soil…”

Life of the Land was permitted to participate in the PUC proceeding, but only on certain issues as a limited participant. A motion to upgrade from participant to intervenor was denied.

COLLINS: “… and ultimately the PUC denied Life of the Land’s request to upgrade its status. The PUC determined that, in fact, nothing related to the environment was within the scope of this participation, both at least for the subsection involving prudence and the public interest.”

Attorney Lance Collins argued that the PUC failed to consider the effect the Hū Honua project would have on greenhouse gases.

COLLINS: “The fact that it’s a biomass project doesn’t give the PUC license to look at the project through a keyhole and disregard everything that’s going on in the project to selectively choose parts of the project that the applicant wants the PUC to consider. The PUC is obligated to consider all of these factors. Well, the Public Utilities Commission is required to consider greenhouse gas emissions and in this case they didn’t. They do need to consider both the lifecycle issues, like the trucking and the actual mechanical harvesting process, and also the greenhouse gas emissions that are released during the burning of the biomass. The PUC considered aspects of the decrease of fossil fuel and particular aspects of the project it did not consider the entire project in terms of whether and what the total reduction in fossil fuel use would be. But that’s separate from greenhouse gas emissions. The two are conflated by the PUC but those are actually separate analyses and the statute calls them out separately to be analyzed.”

Collins also argued his clients were denied due process when they weren’t allowed to become full intervenors in the docket.

COLLINS: “Well, in this appeal, we’re asking that the decision and order be vacated and that it be remanded to the PUC for new proceedings, and also to provide instruction on what the limits of the PCs powers are with respect to analyzing greenhouse gas emissions.”

Solicitor General Clyde Wadsworth responded on behalf of the Public Utilities Commission.

WADSWORTH: “The power purchase agreement at the heart of this case will increase renewable energy generation on Hawaiʻi Island based on local biomass, displace the use of imported fossil fuels, and accelerate the retirement of fossil fuel plants and further the state’s renewable energy goals.”

JUSTICE: “Do you think that the PUC has a duty to explicitly consider greenhouse gas emission?”

WADSWORTH: “The powerplant at issue here is fueled by a renewable energy source: biomass. Not fossil fuels. The state law defines a renewable energy to include biomass and biomass is treated the same way as solar and wind for purposes of the state’s renewable portfolio standards. So state policy is to replace fossil fuels with biomass and other renewable energy resources.”

JUSTICE: “The Chief Justice asked you whether or not greenhouse gas emissions must be considered by the PUC when it makes these kind of decisions. Does it have to make findings? Does it have to consider it?”

WADSWORTH: “It does, by having to show that that fossil fuels will be displaced by the renewable energy.”

JUSTICE: “So that’s – so we should read into this statute where it says greenhouse gas emissions ʻexcept if the greenhouse gas emissions result from biomassʻ?”

WADSWORTH: “No, I’m not suggesting that reading, your honor. I mean – but the premise of state law is that fossil fuels are linked to greenhouse gas emissions. If you displace fossil fuels, you displace greenhouse gas emissions.”

JUSTICE: “And my question to you is, end of discussion?”

WADSWORTH: “Based on the statute, that is the end of the discussion. But here, there is evidence in the record concerning greenhouse gas emissions which the Commission explicitly stated that it considered.”

Attorney Margery Bronster presented the arguments for Hū Honua.

MARGERY BRONSTER: “Life of the Land is attempting to use 269 – 6 to throw out a renewable project in favor of continuing to use fossil fuel plants.”

JUSTICE: “I think what they’re asking for is that the PUC follow what the statute says, which is to specifically consider greenhouse gas emissions and not – not even in their findings say it’s not even an issue in the case. The fact that biomass will reduce fossil fuels doesn’t read out greenhouse gas emissions out of the statute.”

BRONSTER: “So with respect to whether or not it did specifically consider, we would submit that the record shows that it did, even though it did not outline that in the [decision and order].”

UN OFFICIAL: “The Intergovernmental Panel on Climate Change released its new report which confirms the need to limit global warming to well below two degrees centigrade…”

Hanging over the entire proceeding like a dark cloud where recent news headlines painting a dire picture of accelerating climate change on Earth.

UN OFFICIAL: “… the world is already warmed by 1 degree centigrade due to human activity and as a result climate change is already affecting people, ecosystems, and livelihoods around the world.”

The recent report issued by the United Nations Intergovernmental Panel on Climate Change and the disappearance of Hawaii’s East Island in the wake of Hurricane Walaka were both mentioned in the court proceeding.

JUSTICE: “… would you have to predict, for example, that Hawaiʻi just lost one of its islands – East Island in the French Frigate Shoals? It’s been completely lost in the past month, is that sufficient to allege a damage, in your view?”

BRONSTER: “Well, I mean – whether it is or is not, it’s not something that I’ve specifically considered because I don’t think that Life of the Land did even that.”

JUSTICE: “In the future or on remand, there’s an opportunity to explain injury, then that could be a rather large part of the docket; to look at what the effects are global warming, for example. I mean the two and a half degrees, you know, given the Paris Agreement, says two degrees is going to be an existential threat. And there might be proof that we’re going beyond two and a half degrees. And then, perhaps, that means the PUC really has to focus now – if, in fact, we’re headed towards however you define it – the degree of existential threat were headed towards…”

Aside from the Supreme Court case there is Hū Honua’s National Pollutant Discharge Elimination System Application. Hū Honua is seeking a permit to discharge storm water associated with industrial activities into state waters subject to special conditions. The bioenergy company is also applying for an Underground Injection Control Permit, as well as a Solid Waste Permit for the recycling of ash.

LEE: “Of course, we will continue to work with other agencies such as the Department of Health to ensure that we are complying with all laws relating to water quality and discharge.”

The State Department of Health will hold a public information meeting and public hearing on these applications in Hilo on Wednesday, November 14th at ʻImiloa Astronomy Center. The meeting begins at 10:00 a.m. Environmentalists plan to make their voices heard.

KOOHAN PAIK-MANDER: “This is not acceptable. You cannot bring coral back after it’s been bleached. You cannot decontaminate an aquifer that’s pristine. You cannot dispose of a mountain of ash with a snap of the fingers, no matter how many times you apologize. No matter how many exemptions you see that are granted.”

A recent article in the West Hawaii Today reported that Hū Honua is trying to become operational by a December 31st deadline, or else it may lose a $100 million dollar investment tax credit.